Susan Estrich - All things that can go wrong

You may remember hearing about the Montana judge who sentenced a former high school teacher who admitted to raping a 14-year-old student to 30 days in prison. As if that wasn't bad enough, he blamed the victim, who committed suicide before the case could go to trial.

In the latest chapter of this unusually ugly story, Judge G. Todd Baugh has now admitted to the Montana Judicial Standards Commission that he should not have said that the teenager appeared older than 14 and was "probably as much in control of the situation" as the rapist. In response to a complaint against him filed by the state chapter of the National Organization for Women (which released his response), the judge apologized for those comments, writing that he was "sorry I made those remarks. They focused on the victim when that aspect of the case should have been focused on the defendant."

Actually, the whole case should have focused on the defendant. Blaming the victim, much less a dead 14-year-old victim, is inexcusable at any stage. The teacher, 54-year-old Stacey Dean Rambold, pleaded guilty. How do you get from there to 30 days?

"I believe this sentence to be fair, imposed impartially, and without bias or prejudice," Baugh wrote in response to the complaint. "I did not impose this sentence without weighing the relevant factors, and did not impose this sentence based on some misguided attempt to blame the victim."

The bias or prejudice part was a response to the NOW complaint that the judge had acted as he did because the victim was female and Hispanic. The judge's answer presumably means that he would treat the rape of a young white teenage boy equally cavalierly — although his record on cases involving young male victims is actually much tougher.

I've long defended giving judges discretion in sentencing so that the punishment can fit both the crime and the criminal. Discretion in the criminal justice system, it has been noted by many over the years, is like toothpaste in a tube: Squeeze at one point, and it just shows up somewhere else.When legislatures pass mandatory sentences or embrace three strikes or two strikes or other politically appealing slogans that should not be enacted into law, they just transfer the discretion from the judge at the sentencing stage to police and prosecutors who decide what to charge and what plea to accept. I prefer that judges make those decisions, not only because they tend to be more experienced than prosecutors, but also because their decisions are more transparent. Sentences are imposed in open court, subject to scrutiny. At least there is that.

What happened in this case illustrates all of the things that can go wrong. The rape took place in 2007. The teacher was charged in 2008 with three counts of rape. In 2010, the victim committed suicide, and the prosecution, apparently concerned that the case would be hard to prove without her testimony (even though she was 14 at the time and the age of consent in Montana is 16), allowed the teacher rapist to enter a sex treatment program and agreed to dismiss the case if he completed treatment.

Am I the only one who thinks that is exactly what's wrong with prosecutorial discretion?

He didn't complete the treatment, and so they reinstated the charge, and he pleaded guilty last April to a single count of rape. The prosecution asked for 20 years with half suspended. The judge decided that was too much (this is what is wrong with judicial discretion) and sentenced him instead to 15 years in prison, and then suspended all but 31 days of the sentence and gave him credit for the one day — one day — he had already served.

But here's the kicker. The sentencing took place back in August. The outcry began in September. But it took the attorney general of Montana until last week to ask the Supreme Court of Montana to overturn the sentence because it is woefully too short.

I wish I could believe it is just a coincidence that the criminal justice system shows itself at its worst in a rape case with a 14-year-old female victim. I don't.

(Susan Estrich is a professor of Law and Political Science at the University of Southern California Law Center. A best-selling author, lawyer and politician, as well as a teacher, she first gained national prominence as national campaign manager for Dukakis for President in 1988.)